34 F. 515 | U.S. Cir. Ct. | 1888
This is an action of ejectment, brought to recover possession of a certain mining claim, known as the “Prospectus” claim or mine, containing 1,500 feet along the lode or vein, by 200 feet in width, situate in Esmeralda mining district, Esmeralda county, Nev., together with, damages in the sum of §10,000 for ores alleged to have been removed therefrom, and converted by defendants to their own use. The mining claim is particularly described in the complaint by metes and bounds, according to the United States official survey thereof. The plaintiff is a corporation, organized under the laws of the state of California, and engaged in mining in said Esmeralda mining district. The defendants are
Defendants contend that the mine became and was subject to relocation at the date of their attempted relocation thereof, by reason of the failure of plaintiff to do the annual work thereon required by section 2324, Bov. St. U. S. It is conceded that more than one year had elapsed from the date of the last work done on the mine by plaintiff, in 1883, to the date of defendants’ relocation thereof. It is upon this contention of defendants that the rights of the parties in this action depend. I am not aware that this question of plaintiff’s obligation to continue the annual expenditure of $100 upon the claim pending his application for a patent has ever been judicially decided. If such is the ease, I have not found, nor have I been cited to, such decision. It has, however, been ruled upon, and decided adversely to defendants, both by the commissioner of the general land-office, and by the secretary of the interior department; and by each of them in a manner so able, strong, and just as to require but little to be further said in support of their conclusions and decisions.
“The true rule of law governing entries of the public land, to which mineral land forms no exception, is that, when the contract of purchase is completed by the payment of the purchase money and the issuance of the patent certificate by the authorized agents of the government, the purchaser at once acquires a vested right in the land, of which he cannot be subsequently deprived if he has complied with the requirements of the law prior to entry, and the land thereupon ceases to be a part of the public domain, and is no longer subject to the operation of the laws governing the disposition of the public lands. In such eases there is part performance of a contract of sale, which entitles the purchaser to a specific performance of the whole contract, without further action on his part. When the proofs are made, and the purchase money paid, the equitable title of the purchaser is complete; and the patent, when issued, is evidence of the regularity of the previous acts, and relates to the date of entry, to the exclusion of all intervening claims. In short, an entry made is in all respects equivalent to a patent issued, in so far as third parties are concerned. In support of these views, I cite the following adjudicated cases: Carroll v. Safford, 3 How. 441; Landes v. Brant, 10 How. 348; Lessees of French v. Spencer, 21 How. 240; Witherspoon v. Duncan, 4 Wall. 218; Frisbie v. Whitney, 9 Wall. 187; Irvine v. Irvine, Id. 617; Barney v. Dolph, 97 U. S. 652; 5 Cruise, Dig. 510, 511. As the doctrine is firmly established that, where several concurrent acts are necessary to make a conveyance; the original act shall be preferred, and all subsequent acts shall have relation to it, it is held that an entry made is equivalent to a patent issued, within the meaning and intent of section 2324, ltev. St.”
In addition to the above authorities we cite: Wirth v. Branson, 98 U. S. 118; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95; Mining Co. v. Dangberg, 2 Sawy. 451-455; Milling Co. v. Spargo, 8 Sawy. 645, 16 Fed. Rep. 348. We need not discuss this proposition further. If any proposition of law can be deemed settled we think this is. The decisions of the commissioner and secretary have stood unchallenged as to their correctness by the courts or legislative action for nearly 10 years. They may properly be said to have become rules of property, regulations under and by which property and the rights thereto are secured and protected.
The mining interests of the country are of great moment and value. The mode of acquiring title thereto should be by fixed and certain procedure, not subject to capricious change. Sections 2324-2326, Rev. St., were enacted in 1872. They were amended in certain particulars in 1880, and again in 1882. It can hardly be supposed that congress
At the trial of this case, defendants offered evidence tó show that the plat and notice were not posted on the claim during the time by law required. This was objected to by plaintiff’s counsel as wholly inadmissible. As the case was hoard without a jury, the court admitted the evidence, subject to be stricken out, if upon deliberation it should be deemed inadmissible. The evidence offered on this point was in nowise satisfactory, but it was wholly rejected from consideration. It was in nowise admissible for any purpose in the case, and could not he considered. By law the officers of the land department are charged with the whole business of transferring the government title to public; land, and they are exclusively charged with that duty. Within the sphere of their duty
■ • It was further urged that this being an action at law, recovery could be had only upon the legal title. This position cannot be maintained. Section 910, Rev. St., provides for this class of cases:
“No possessory action between persons, in any court of the United States, 'for the recovery of any mining title, or for damage to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each ease shall be adjudged by the law of possession.”
As a general rule, any person vested with the right of immediate possession to realty may maintain ejectment. As against a trespasser without color of title, prior possession will support the action. In Christy v. Scott, 14 How. 292, the court say:
“But a Hiere intruder cannot enter on a person actually seized, and eject him, and then question his title, or set up an outstanding title in another. The maxim that the plaintiff must recover on the strength of'his own title, and not on the weakness of the defendant’s, is applicable to all actions for the recovery of property. But if the plaintiff had actual prior possession of the land, this is strong enough to enable him to recover it from a mere trespasser who entered without any title. He may do so by writ of entry, where that remedy is still practiced, (Jackson v. Railroad Corp., 1 Cush. 575;) or by an ejectment, (Allen v. Rivington, 2 Saund. 111; Doe v. Reade, 8 East, 356; Roe v. Dyeball, 1 Moody & M. 346; Jackson v. Hazen, 2 Johns. 438; Whitney v. Wright, 15 Wend. 171;) or he may maintain trespass, (Catteris v. Cowper, 4 Taunt. 548; Graham v. Peat, 1 East, 246.)”
See, also, Campbell v. Rankin, 99 U. S. 261; Sedg. & W. Tr. Title Land, §§ 185, 718 et seq. Defendants were trespassers — mere intruders — upon plaintiff’s lawful possession when they attempted to relocate this mine.
There must be judgment for plaintiff for possession of the mining ground described in the complaint, together with the sum of $1,382.50 damages for ores removed and converted, and for costs of this action, and it is so ordered.